Combustion Engineering, Inc.

COMBUSTION ENGINEERING, INC. Combustion Engineering, Inc. and Carl Jones Millwrights Local Union 1103, United Brotherhood of Carpenters and Joiners, AFL-CIO and Carl Jones. Cases 25-CA-3857 and 25-CB-1008 May 18, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On January 27, 1971, Trial Examiner Louis Libbin issued his Decision in the above -entitled proceedings finding the Respondents had not engaged in the unfair labor practices alleged in the consolidated complaints and recommending that the complaints be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and Respondent Union filed an answering brief to the Gen- eral Counsel's exception. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its powers in connection with these cases to a three -member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions , and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the com- plaints herein be, and they hereby are, dismissed in their entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Louis LIBBIN, Trial Examiner: Upon charges filed on July 13, 1970, by Carl Jones, an individual, the General Counsel of the National Labor Relations Board, by the Regional Di- rector for Region 25 (Indianapolis, Indiana), issued separate complaints, dated August 31, 1970, against Combustion En- gineering, Inc., herein called Respondent Company or Re- spondent Combustion, and against Millwrights Local Union 1003, United Brotherhood of Carpenters and Joiners, AFL- CIO, herein called Respondent Union, respectively. At the same time, the said Regional Director also issued an Order Consolidating Cases for hearing. With respect to the unfair labor practices, the complaints allege that Respondent Com- 190 NLRB No. 83 391 pany violated Section 8(a)(1) and (3) of the Act and that Respondent Union violated Section 8(b)(1)(A) and (2) of the Act in connection with Respondent Company's employment termination of employees Carl Jones and Jerome D. Tesmer on July 10, 1970. In their duly filed answers, Respondents each deny that they committed the unfair labor practices alleged in the respective complaints. This case was tried before me at Terre Haute, Indiana, on November 17 and 18, 1970. All parties appeared and were given full opportunity to participate in said trial. On Decem- ber 31, 1970, each Respondent and the General Counsel filed briefs, which I have fully considered. For the reasons here- inafter indicated, I find that Respondents did not engage in conduct violative of the Act and will recommend that the complaints be dismissed in their entirety. Upon the entire record in the case,' and from my observa- tion of the witnesses while testifying under oath, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT COMPANY Respondent Combustion Engineering, Inc., a Delaware corporation with its principal office and place of business in Windsor, Connecticut, maintains various facilities, including the one involved herein at Cayuga, Indiana, where it is en- gaged in the construction and repair of electrical power gene- rating equipment. During the year preceding the issuance of the instant complaints, a representative period, Respondent purchased, transferred, and delivered to its various facilities goods and materials, valued in excess of $50,000, which were transported to said facilities directly from states other than the state wherein said facilities were located; during the same period, Respondent performed services, valued in excess of $50,000, in states other than Connecticut wherein its princi- pal office and place of business is located. Upon the above admitted facts, I find, as Respondents admit in their respective answers, that Respondent Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE STATUS OF RESPONDENT UNION The complaint alleges, Respondents admit, the record shows, and I find, that Millwrights Local Union 1003, United Brotherhood of Carpenters and Joiners, AFL-CIO, Re- spondent Union herein, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Introduction; the Issues2 Respondent Combustion has been engaged since August 1968 in the construction of steam generating equipment at Cayuga, Indiana, for Public Service of Indiana to furnish steam for generation of electricity. In July 1970, Combustion had at the project about 140 employees who were members of various building trade unions. Included in this number were 11 employees classified as millwrights. Combustion ad- ' In its brief Respondent Union moves to admit into evidence as Resp Union's Exh 3 an attached copy of the pretrial affidavit of Foreman Lawson, which affidavit had been used by the General Counsel in his examination of Lawson No objections thereto having been filed, said motion is hereby granted, and the pretrial affidavit has been placed in the official exhibit folder as Resp Union's Exh. No 3 Obvious inadvertent errors in the typewritten transcript of the testimony have been noted and corrected ' The facts set forth in this section are either admitted or undisputed 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD heres to an agreement with the Carpenters District Council of Central and Western Indiana, of which Respondent Union is an affiliate. The agreement covers both millwrights and carpenters, although Respondent Union limits its member- ship to millwrights. Combustion's standard procedure in hiring millwrights was to call Respondent Union' s Business Representative McClure for referrals. On April 28, 1970, Combustion called McClure for four millwrights, two for rigging purposes and two for welding purposes. Unable to fill these requests, McClure called Business Representative Eugene Pittman of Carpenters' Local No. 1455 and 1217 in Crawfordsville, In- diana, advising that he needed two men with millwright ex- perience and inquiring if Pittman had anyone available Pitt- man replied that he had the men and thereupon referred Carl Jones and Jerome Tesmer, the alleged discriminatees, to Combustion at the Cayuga project where they were hired that day. Jones and Tesmer were carpenters by trade and were mem- bers only of Carpenters' Local Union No. 1455 and 1217, respectively. They admittedly had very little, if any, mill- wright experience. They worked for Combustion without re- ceiving any official complaints as to their work until Friday, July 10, when they were laid off by Foreman Lawson pursu- ant to instructions from Project Manager Childers. The following workday, Monday, July 13, Combustion hired two experienced millwrights, Berry and Myers, who were members of Respondent Union and who were referred or approved by Business Representative McClure. Both had previously worked as millwrights for Combustion on the same project. Berry was then working for another contractor on the same jobsite and had applied for a millwright job directly to Childers during a coffee-break about 5:30 p.m. on Thursday, July 9, because the millwrights had been informed by the contractor that their work would be completed at the end of that workday. Childers stated that he needed mill- wrights and that Berry could go to work the next day if it was all right with McClure. Berry telephoned McClure on Friday morning and was told that it was all right to go to work for Combustion and that he could report that very afternoon. However, Berry did not report for work at Combustion until 7 a.m., Monday, July 13. The complaint against Respondent Combustion alleges that Combustion violated Section 8(a)(1) and (3) of the Act by its conduct in terminating Jones and Tesmer because of their nonmembership in Respondent Union, because of the withdrawal of said Union's consent to their continued em- ployment and because Respondent Union caused Combus- tion to replace them with persons who were members of, or referred or cleared by, Respondent Union. The complaint against Respondent Union alleges that said Union violated Section 8(b)(1)(A) and s(2) of the Act by attempting to cause and by causing Combustion to discriminate against the em- ployment of Jones and Tesmer because of their nonmember- ship in said Union, because of the said Union's withdrawal of its consent to their continued employment and because Respondent Union sought to cause Combustion to replace them with persons who were members of, or referred or cleared by, said Union. It is the position of the General Coun- sel that in a telephone conversation between Respondent Un- ion Representative McClure and Combustion's Project Manager Childers on Friday, July 10, 1970, McClure told Childers to lay off the two carpenters and he would send him two millwrights the following week, and that Childers there- upon ordered the layoff of Jones and Tesmer, the only two carpenters then employed by Combustion, pursuant to McClure's instructions. Respondent Combustion's position is that Jones and Tesmer were unqualified and unable to per- form skilled millwright work properly, that they were re- tained to perform less skilled work which was then available, such as cleaning, hauling, and replacing parts, that Project Manager Childers independently decided upon the layoffs when there was insufficient work available for inexperienced millwrights and a need at that time for more experienced millwrights to perform precision work, and that McClure neither requested, nor in any way influenced him to effect, the layoffs. Respondent Union' s position is that Business Repre- sentative McClure did not tell Childers to lay off the two carpenters and that Respondent Union was in no way in- volved in Childers' decision to effect the layoffs. The principal issues litigated in this proceeding are (1) whether Foreman Lawson was a supervisor within the mean- ing of the Act at the material times herein, (2) the telephone conversation between Childers and McClure on July 10, and (3) whether the layoffs of Jones and Tesmer were dis- criminatorily motivated by Combustion and caused by Re- spondent Union for discriminatory reasons, as proscribed by the Act. B. The Supervisory Status of Foreman Lawson Only Respondent Combustion denies that Foreman Law- son was a supervisor under the Act. Lawson was hired on March 25, 1970, upon referral by Respondent Union of which he was a member. He held the title of "foreman" from the date of his hire and had stopped performing any manual labor about 3 months before July 10. Lawson "directed" the millwrights in the performance of their work and selected employees for particular work assign- ments. The performance of these functions required Lawson to evaluate and determine the skills of the millwrights on the crew. Lawson also had the authority to recommend discipli- nary action, including discharge. Although Childers at first testified that a discharge recommendation by Lawson would be given weight and would be followed "after careful exami- nation and gathering of the facts, if found to be true," he admitted in his pretrial affidavit executed by him on August 15, that Lawson's recommendation as to discharge would be followed without independent investigation. Childers finally admitted on further examination by the General Counsel at the instant hearing that Lawson's recommendations as to the selection of employees for layoff would, at least on occasion, be followed without independent investigations. Later, when asked by Combustion's counsel what authority Lawson would have with regard to "deciding who was going to be laid off," Childers testified, "for numbers, I would decide the number. But for persons, I would leave that up to him." Lawson's rate of pay was 50 cents an hour more than that of the millwrights. The foregoing findings are based entirely on the undisputed testimony and admissions of Project Manager Childers. They clearly establish, as I find in agreement with the General Counsel and Respondent Union, that at all times material herein Foreman Lawson possessed the authorities, some of which he has exercised, which render him a supervisor within the meaning of Section 2(11) of the Act.' 3 See, e g, Apex Ventilating Co., Inc, 186 NLRB No 68 (TXD) COMBUSTION ENGINEERING, INC. C. Childers-McClure July 10 Telephone Conversation 1. The telephone call a Childers' testimony Childers was the first witness called by the General Coun- sel. He testified that he telephoned to McClure between 2:30 and 2:45 p in on Friday, July 10, that at that time he (Child- ers) had already made the decision to lay these men off, and that he had the following conversation with McClure, al- though not necessarily in the same sequence: Childers stated that he intended "to have a lay-off, a reduc- tion in force of two or three men." McClure replied, "You are the boss and if it has to be, that is your decision." They then "discussed the problem we were having in getting welders, riggers and people with specific skills." Childers specifically asked McClure if he could send Childers some men. McClure replied that he thought that in the near future he would have people finishing up and they would be available. After re- freshing his recollection from his pretrial affidavit, Childers testified that McClure stated he would probably have two men with previous employment with Combustion available the first of the following week and he would send them to Childers as soon as they became available. Childers further testified that "I believe that I had" told him that one man had already come by to see him (Childers). He admitted that this statement does not appear in his affidavit and that he did not ask McClure specifically to refer Berry, the millwright who had previously worked for Combustion and to whom Child- ers had stated the preceding afternoon that he could come to work if he cleared it with McClure. Childers further told McClure that he understood there would be jobs completed in the area and there would be some millwrights available. McClure replied that he thought there would be some availa- ble in the near future. Childers denied that McClure told him to lay anyone off. b. McClure's testimony McClure, who was present in the hearing room when Childers testified, was the fourth witness called by the Gen- eral Counsel He testified that he thought it was about 11 a.m. when Childers telephoned him, and that in his office at that time were Pauline Gray, who was his secretary, and Gail Schofield, a millwright who was there seeking further em- ployment. With respect to the ensuing conversation, McClure testified as follows. Childers stated that he had a problem. In response to McClure's query as to the nature of the problem, Childers replied, "I have two people in my employ who are not qua- lified to do the job" and "I am going to have to replace these men." Childers then asked, "do I have to keep people on my payroll who are not qualified?" McClure replied that there was nothing in the contract which required him to keep anybody who is not qualified and that the only man he would have to keep would be the union steward. Childers stated that he was going to lay off two employees and that he was going to employ two millwrights who had previously worked for him in unit one and were qualified to do this type of work. McClure asked if Childers could "just use the two additional men." Childers replied that he could not afford the additional expense because he would then be required to employ another foreman and general foreman. McClure then stated, "Chilly, you are the man who cracks the whip over there." In response to Childers' query as to what McClure meant by that, McClure stated, "I have nothing to do with who you lay off and you are the boss of the job, so you can lay off whoever you want, other than the steward." 393 McClure testified that he could not "recall for sure" if Childers mentioned the names of the two men he was going to hire. He further testified that Childers in this conversation made no request that McClure send millwrights over. McClure testified that he "definitely" did not at any time tell Childers that he wanted Childers to lay off the carpenters and replace them with millwrights. c. Pauline Gray's testimony Pauline Gray was employed by Respondent Union as a bookkeeper and to answer the telephone. Her immediate supervisor is McClure. Called as a witness by Respondent Union, she testified that on or about July 10 she overheard a telephone conversation which McClure had with someone whom McClure called "Chilly" in the conversation. She be- lieved this conversation occurred "before noon." She then testified on direct-examination that "Mr. McClure was talk- ing about the possibility of a lay-off at the power plant at Cayuga," that "Mr. McClure mentioned two men to be laid off," that no names were mentioned, that Mr. McClure "more or less" said that he would not make any recommenda- tions ... that they lay off or not" and that "that was up to the contractor." She could not recall anything else that was said. On cross-examination by the General Counsel, she testified that she did not "remember the exact words" used by McClure and that the only conversation she specifically remembered was him saying, "it is up to you." She further testified that McClure received about 20 other telephone calls that day and that she could not remember what he said in any of them. d. Dale Schofield's testimony Dale Schofield was called as a witness by Respondent Un- ion. At that time he was the Union's recording secretary and delegate to the District Council. He testified that in the early afternoon of July 10 he was in Respondent Union's office to find out if there was any millwright work available, that Business Agent McClure and Pauline Gray, the secretary, were also present in the office, and that he overheard McClure have a telephone conversation. He further testified the the first thing he heard was McClure mentioning the name "Chilly," that "a second later" the "word Cayuga came up," and then McClure said, "you crack the whip, I am not going to tell you anything." He further testified that after a few minutes elapsed he heard McClure say, "you can lay off anybody that you care to except one man, the steward," and that he did not remember anything else that was said. He denied hearing McClure at any time say, "lay off two carpen- ters and hire two millwrights." 2. Childers informs Foreman Lawson a. Foreman Lawson's testimony Foreman Lawson was called as a witness by the General Counsel in support of his case. Lawson at first testified that the first time Childers spoke to him about the layoffs was on July 10 and in that conversation Childers "said that he had talked to Mr. McClure" but did not relate what he had talked about. Lawson then testified that in a further conversation with Childers that day "Childers stated that he would like to lay off possibly three men, two carpenters and one permit man," and that Lawson replied he would have to talk to the steward about it. When asked at that point by the General Counsel if there was any further mention made of McClure, Lawson testified, "No." The General Counsel thereupon 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked Lawson to read paragraph 10 of his pretrial affidavit.4 When Lawson was then asked if his memory was refreshed as to whether Childers mentioned his conversation with McClure, Lawson testified, "I can't say positive that he did say that Mr. McClure told him to lay off the two men." When asked at that point what he had stated in his affidavit, Lawson testified, "That Mr. Childers had gotten a telephone call from Irish McClure and McClure told him that he could lay off two carpenters and that he would send him two millwrights." (Emphasis added.) Lawson then admitted, in response to the General Counsel's question, that paragraph 9 of his affidavit contains the sentence that "McClure had told Childers to lay off two carpenters and he, Irish, would send him two mill- wrights."5 The General Counsel then asked if "that is your best memory of that conversation," and Lawson testified, "Yes, I guess it is." On cross-examination, Lawson testified that he spoke to Childers about the layoffs only twice that day, and that his only recollection of Childers mentioning his conversation with McClure was during the first conversation. When asked by Combustion's counsel if he can "testify exactly what Childers told him," independently of his affidavit, Lawson testified, "I cannot testify to that telephone call.... The best that I can remember . . is what I stated the first time," that Childers said he had talked to McClure on the telephone and "wanted him to lay off two carpenters and a permit man." The cross-examination continues as follows: Q. When you say "he" wanted to lay off two carpen- ters and a permit man, who do you mean by "he?" A. Mr. Childers. Q. You don't mean Mr. McClure? A. That's right. Q. That is your best recollection as of right now? A. That's right. Counsel for Combustion further cross-examined Lawson on this point as follows: Q. To the best of your recollection, what did Mr. Childers tell you about that call? A. That he had talked to Mr. McClure and that he was to lay off two men, three men, really, to start with. Q. He was to or he was going to, or was instructed to or not? A. He was going to. Q. You're talking about Mr. Childers? A. Mr. Childers was going to lay off three men Q. Did he tell you that Mr. McClure told him to do this? A I can't say for a fact that he did. In response to a later question by the Trial Examiner as to what Childers told Lawson when the latter spoke to Childers the first time that day, Lawson testified: That he had talked to Mr. McClure and he was going to lay off-he was going to lay off two carpenters and one permit man. Then I went and got Mr. Holt and came back He told Mr. Holt and I the same thing ' The relevant portion of this paragraph is as follows At the time that Jones was told he was being laid off, [Union Steward] Holt or I may have mentioned that Childers had gotten a telephone call from Irish McClure and that McClure had told Childers to lay off two carpenters and that he (Irish) would send him two mill- wrights Monday morning I recall Childers mentioned something about such a telephone conversation with McClure and discussing this with Holt [Emphasis supplied ] I note that his sentence in the affidavit relates what Lawson or Holt may have told Jones and that the reference in the affidavit to Lawson's recollec- tions of what Childers told him about McClure's telephone call is to "something about such a telephone conversation." See In 4, supra b. Childers' testimony Childers testified that after his telephone conversation with McClure he told his millwright foreman, Lawson, that he "would like to have a layoff of two or three millwrights," that Lawson stated he would have to get Union Steward Holt and discuss it with him, and that about 15 minutes later he talked to Lawson and Holt in the same place and told them the same thing. Childers further testified that "probably in the conver- sation" he mentioned his telephone call with McClure and that it "was likely" he stated that there would be more skilled people available in the future. He further testified that if he had told them that McClure had instructed him to lay off people he "sure would" have remembered it and that he had no such recollection c. Jones' testimony Carl Jones, one of the alleged discriminatees, testified that he was informed of his layoff by Lawson on the afternoon of July 10 and that during the conversation Lawson stated that Childers had told Lawson that McClure had called Childers and told Childers to lay off the two carpenters and a permit man D. Concluding Findings I do not regard McClure and Childers as credible wit- nesses. I have arrived at this conclusion upon considering their demeanor while testifying, their obvious interest in de- nying any damaging evidence in the crucial telephone conver- sation, and the glaring conflicts and inconsistencies between their respective versions of this conversation as well as with other established facts. Nor can I attach any significant weight to the pat alleged corroborating testimony of Gray and Schofield as their relationship to Respondent Union ren- ders their testimony very suspect. This leaves the testimony of Jones and Lawson, the only testimony which contains evidence that Lawson was told by Childers that McClure had told Childers to lay off the two carpenters. I can attach no probative weight to the testimony of Jones, also an obvious interested witness, as that testimony constitued hearsay of the rankest kind. Foreman Lawson appears to be the only neutral and disin- terested witness who testified with respect to the July 10 telephone call. Testifying as a witness for the General Coun- sel in the presence of his project manager and business agent, he impressed me as essentially an honest witness. I would accept his testimony if the record, hereinabove detailed, had clearly and unequivocally demonstrated what his real tes- timony was on this crucial issue. I can appreciate the embar- rasing position in which he was placed by appearing as a witness against his employer and union. It may well be that due to a reluctance to appear to be testifying too strongly against the interests of his employer and union, he at times deliberately muted and recanted his most damaging state- ments on this issue. Or it may be that he was truly confused and unaware of the different effect resulting from his choice of words in relating what Childers told him, as for example between the words "would," "could," and "should," and that he actually did not fully recall Childers' exact choice of words in his description of his conversation with McClure. What- ever the reason, the fact remains that Lawson at different times testified on both sides of the crucial issue. At first he testified that Childers only mentioned that he had talked to McClure on the telephone and that Childers did not relate what he had talked about. Then after further prodding by the General Counsel with the use of Lawson's pretrial affidavit, he testified that he could not be "positive" that Childers did say that McClure told him to lay off the two men. Thereafter, COMBUSTION ENGINEERING, INC at different times he answered both in the affirmative and in the negative the crucial question as to whether Childers stated he was told by McClure to lay off the two carpenters. It would not be an exaggeration to characterize Lawson's testimony as being at times, confusing, equivocal , and contra- dictory. On the other hand, some aspects of his testimony on this point coincide with some portions of the versions given by Childers and McClure. Lawson's above-described testimony , considered as a whole, does not in my judgment warrant a finding that Child- ers stated he was told by McClure to lay off the two carpen- ters. Nor does the record otherwise disclose any evidence and surrounding circumstances which, while not free from suspi- cion, would warrant an inference that McClure did in fact make such a statement to Childers. As I regard such a finding or findings essential to sustain the General Counsel 's case, I find that, in their absence, the General Counsel has failed to establish a prima facie case against Respondents . I therefore deem it unnecessary to consider the merits of Combustion's 395 remaining defenses and will accordingly recommend that the complaints be dismissed in their entirety. CONCLUSIONS OF LAW 1. By laying off Carl Jones and Jerome Tesmer on July 10, 1970, Respondent Combustion has not engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 2. In connection with the aforestated layoffs, Respondent Union has not engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings and conclusions and pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, I hereby recommend that the com- plaints against Respondent Combustion and Respondent Un- ion, Terre Haute, Indiiana , be dismissed in their entirety.